08-4661-cv

McGullam v. Cedar Graphics, Inc. 1 UNI TEDSTATE S COURT O F APPEALS 2 3 FOR THE S ECOND CIRCUI T 4 5 Aug ust Term , 2 009 6 7 (Ar gue d: Apr il 13, 20 10 De cid ed: Ju ne 15, 20 10) 8 9 Doc ket No . 0 8-4 661 10 11 12 - - - - - - - - - - - - - - - - - - - - x DON NA L. McG ULL AM, 13 14 Pla int iff -Ap pel lan t, 15 16 17 - v .- 18 CEDAR GRA PHI CS, IN C., 19 20 Def end ant -Ap pel lee . 21 22 - - - - - - - - - - - - - - - - - - - - x 23 Bef ore : JAC OBS , C hie f J udg e, KEARSE an d 24 25 CAL ABRESI , C irc uit Ju dge s. Ju dge 26 Cal abr esi co ncu rs in a s epa rat e o pin ion . 27 28 App eal fr om a j udgmen t o f t he Uni tedSt ate s D ist ric t 29 Cou rt forth e E ast ern Di str ict ofNe w Y ork(H url ey, J. ), 30 gra nti ng summar y j udgmen t o n f ede ral an d s tat e l aw cla ims of 31 a s exu all y h ost ile wo rk env iro nme nt, di spa rat e t rea tme nt, 32 andre tal iat ion . Reg ard ingth e T itl e V II hos til e w ork 33 env iro nme nt cla im to whi ch thi s a ppe al is lim ite d, we aff irm 34 the gr ant ofsu mma ry jud gme nt on the gr oun d t hat th e o ne 35 non -tr ivi al commen t t hat ma y f all wi thi n t he lim ita tio ns2 1 per iodis in suf fic ien tlyre lat ed to the ea rli er cou rse of 2 all ege d h ara ssm ent , u nde r National Railroad Passenger 3 Corporation v. Morgan, 536 U.S. 101 (2002) . Jud ge Cal abr esi 4 con cur s i n t he jud gme nt andop ini on of the Co urt an d f ile s a 5 sep ara te opi nio n. 6 DON NA L. McG ULL AM, pr o s e, 7 Eas tpo rt, NY . 8 9 ANAC. SH IEL DS (Ma rk S. Man che r, 10 on the br ief ), Jac kso n L ewi s LLP , M elv ill e, NY, fo r Appe lle e. 11 12 13 DEN NIS JA COB S, Chi ef Jud ge: 14 15 Pla int iff -ap pel lan t D onn a L . M cGu lla m a ppe als pr o s e 16 fro m a ju dgm ent ofth e U nit ed Sta tes Di str ict Co urt fo r t he 17 Eas ter n D ist ric t o f N ew Yor k ( Hur ley , J .), gr ant ingsu mma ry 18 jud gme nt on fed era l a nd sta te lawcl aim s o f a se xua lly 19 hos til e w orken vir onm ent , d isp ara te tre atm ent , a nd 20 ret ali ati on in fav or of McG ull am’ s e mpl oye r, def end ant

21 app ell ee Ced ar Gra phi cs, In c. Re gar din g t he Tit le VII 22 hos til e w orken vir onm ent cl aimto wh ichth is app eal is 23 lim ite d, we aff irmon th e g rou nd tha t t he one no n-t riv ial 24 commen t t hat ma y f all wi thi n t he lim ita tio ns per iod(w hic h 25 was ma de nea rlyon e y earaf terCe darGr aph ics ha d 26 tra nsf err ed McG ull am to ano the r d epa rtm ent ) i s 27 ins uff ici ent ly rel ate d t o t he ear lie r c our se of all ege d3 1 har ass men t. Th e g ove rni ng aut hor ityis Na tio nal Ra ilr oad 2 Pas sen gerCo rpo rat ion v. Mo rga n, 536 U. S. 101 (2 002 ). 3 4 BACKGR OUND 5 Forre aso ns exp lai nedla terin th is opi nio n, McG ull am 6 was re qui redto fi le a c omp lai nt wit h t he app rop ria te age ncy 7 wit hin 30 0 d ays ofth e l ast in sta nce in a cou rse of 8 har ass men t; andifsh e d id, th at fil ingwo uldha ve all owe d 9 herto pl eadth e f ull pr iorco urs e o f r ela tedha ras sme nt. 10 The re lev ant ch ron olo gy is tha t i n Apri l 1 996 , M cGu lla m 11 was hi redbyCe darGr aph ics , a fu ll- ser vic e p rin tin g 12 compan y, to wor k i n t he pro duc tio n d epa rtm ent . On Sep tember 13 22, 19 99, af tersh e c omp lai nedofse xua l h ara ssm ent an d a t 14 herre que st, sh e w as tra nsf err ed to a p osi tio n i n t he 15 est ima tin g d epa rtm ent . She wa s t erm ina tedon Se pte mbe r 1 2, 16 200 0, andsh e f ile d h er compla int wi th the re lev ant ag enc ies 17 on Jul y 3 , 2 001 . 18 McG ull am all ege s t hat wh en she wa s i n t he pro duc tio n 19 dep art men t s he “wa s r egu lar ly exp ose d t o s exu al commen ts, 20 sex ual ly exp lic it mat ter s, sex ual jo kes , h ost ile [a nd] 21 vul garla ngu age , s exu al [in nue ndo s] andgr oss be hav ior s, 22 pri mar ilybyma le cow ork ers , i ncl udi ng man age men t” des pit e4 1 “[c ]on tin ual co mpl ain ts to man age men t.” A cco rdi ng to 2 McG ull am’ s u nsw orn “j our nal ” ( sub mit tedbyMc Gul lamin th e 3 dis tri ct cou rt andac cep tedas tr ue by Ced ar Gra phi cs for 4 pur pos es of the su mma ry jud gme nt mot ion ), thi s o ffe nsi ve 5 “pr odu cti on dep art men t c ond uct ” i ncl ude d, but is no t l imi ted 6 to, th e f oll owi ng: 7 • On the fi rst da y o f M cGu lla m’s emplo yme nt, Ap ril 15 , 8 199 6, she wa s a ske d t o r etr iev e a fi le by cli mbi ng a 9 lad deran d t he mal e c o-w ork er hol din g t he lad derto ld 10 her“n ot to wor ry, th at he was n’t go ingto lo ok up 11 [he r] ski rt. ” 12 13 • In win ter19 97, Mc Gul lambr oug ht sev era l p ack age s t o 14 the sh ipp ingde par tme nt lat e o ne eve nin g a nd a m ale co 15 wor kerco mme nte d i n p art th at “‘I di dn’ t t hin k y ou 16 cou ld eve n d ragyo ur bigfa t a ss bac k h ere .’” 17 18 • In Nov emb er 199 8, a m ale co -wo rke r i n w homMc Gul lamha d 19 con fid ed abo ut a “ rom ant ic bre ak up, ” “ att ack ed [he r] 20 in fro nt of the en tir e p rod uct ion de par tme nt” by 21 sta tin g: “‘I th inkyo u’dbe a lot ha ppi er per son ifyo u 22 got f* *** d m ore of ten . Yea h, I t hin k t hat ’s def ini tel y 23 you r p rob lem , y ou don ’t get f* *** d e nou gh. ’” 24 25 • In Jul y 1 999 , a ma le co- wor ker“s itt ingat hi s d esk 26 wit h b othar ms out str etc hedto war d [ McG ull am] an d o ne 27 han d s hap ed int o a gu n” sta ted“‘ I’dli ke to pump a 28 bul let in to you r h ead , r igh t b ehi nd you r e ar andbl ow 29 you r b rai ns out .’” 30 31 • In summer19 99, Mc Gul lam“h ad to end ure ov erh ear ingth e 32 det ail s o f a co nve rsa tio n” in whi ch a f ema le co- wor ker 33 tol d t wo mal e c o-w ork ers th at she wi tne sse d a n a ct of 34 “‘d ogg ie sty le’ ” s ex in the ba thr oomofa nig htc lub th e 35 pre vio us wee ken d. 36 37 • On an unk now n d ate , a ma le co- wor kerco mme nte d “ ‘Bo ing , 38 boi ng, lo ok at tha t-- rig ht thr oug h t he den im, ’” aDe spi te thi s s tat ed rat ion ale an d t he att end ant pa y 1 cut , M cGu lla m p ubl icl y p ort ray ed hertr ans feras a pos iti ve car eermo ve. 5 1 “re fer enc e t o t he fac t t hat [M cGu lla m’s ] h ard ene d 2 nip ple s w ere vi sib le eve n t hro ugh[h er] de nimju mpe r.” 3 4 • On an unk now n d ate , a n u nkn own pe rso n r epl ace d a si gn 5 McG ull am hadta pedto he r c omp ute r t hat re ad “‘Alo t 6 goe s i nto be ingth e b est ,’” wi th a s imi larsi gn tha t 7 rea d “ ‘A lot go es in to bei ng the bi tch .’” 8 9 McG ull am’ s j our nal ex pla ins th at she “w as des per ate to 10 rem ove ” h ers elffr om the pr odu cti on dep art men t a nd the ref ore 11 req ues tedtr ans ferto an op en pos iti on in the es tim ati ng 12 dep art men t, “wh ichwa s o n t he oth er sid e o f t he bui ldi ng- - 13 hop efu llyfa r e nou gh awa y f romth e h ost ili ty, ha ras sme nt and 14 thr eat s o f v iol enc e.” A s M cGu lla m e xpl ain ed at her 15 dep osi tio n, she “m ov[ ed] be cau se [sh e] cou ld not ta ke 16 wor kin g i n t his se xua llyag gre ssi ve andho sti le env iro nme nt 17 whe re [sh e] was ev ent ual ly phy sic all y t hre ate nedbya 18 col lea gue .” 1 19 McG ull am compla ins ofon ly a s ing le inc ide nt pos t20 dat inghe r S ept emb er 22, 19 99 tra nsf er: 21 Whi le wor kin g i n t he est ima tin g d epa rtm ent , I wa s 22 awa y f romth e m ajo rit y o f t he har ass men t, 23 hos til ityan d a ggr ava tio n. Ho wev er, al l c omm ent s 24 of a s exu al andde rog ato ry nat ure di d n ot cea se 25 ent ire ly. O n t he opp osi te sid e o f m y c ubi c[l e] 26 wal l w as a s ale sma n . . . [ who ] c arr iedon 27 num ero us len gth y c onv ers ati ons wi th mal e b udd ies6 1 andma de fre que nt commen ts abo ut wom en suc h a s 2 ref err ingto th em as “ch ick ies [.” ] He als o 3 rem ark ed tha t “ [i] f i t w asn ’t goi ng to be a s lee p4 ove r, she wa sn’ t w ort h t he tri p[, ”] reg ard inga 5 wom an fri endth at he was in vol vedwi th 6 (tr ans lat ingto : s he’ s o nlywo rthth e t rip ifI’ ll 7 be get tin g s ex) . Thi s w as a t hor oug hlyde mea nin g 8 commen t r ega rdi ng wom en. 9 10 The sa les man wh o o ffe nde d M cGu lla m b y t he “ch ick ies 11 commen ts” an d t he “sl eep -ov er commen t” was no t a me mbe r o f 12 the pr odu cti on dep art men t o r o f t he est ima tin g d epa rtm ent . 13 On Sep tember12 , 2 000 , C eda r G rap hic s t erm ina ted 14 McG ull am’ s e mpl oym ent . On Jul y 3 , 2 001 , M cGu lla m f ile d a 15 compla int wi th the Ne w Y orkSt ate Di vis ion ofHu man Ri ght s 16 (th e “ NYS DHR ”) andth e U nit ed Sta tes Eq ual Emplo yme nt 17 Opp ort uni ty Commis sio n ( the “E EOC ”) all egi ng a s exu all y 18 hos til e w orken vir onm ent an d r eta lia tor y t erm ina tio n. On 19 Feb rua ry 9, 200 4, the NY SDH R i ssu ed a D ete rmi nat ion an d 20 Ord er Aft er Inv est iga tio n f ind ingno pr oba ble ca use an d 21 dis mis sin g M cGu lla m’s co mpl ain t. On Ap ril 2, 20 04, th e E EOC 22 ado pte d t he fin din gs of the NY SDH R, dis mis sedMc Gul lam ’s 23 compla int , a nd iss ueda rig ht- to- sue le tte r, whi ch McG ull am 24 rec eiv ed on Apr il 8, 200 4. 25 On Jul y 6 , 2 004 , M cGu lla m p ro se fil ed thi s l aws uit , 26 all egi ng tha t s he was di scr imi nat ed aga ins t o n t he bas is of 27 sexin vi ola tio n o f T itl e V II of the Ci vil Ri ght s A ct ofUn derTi tle VI I, it is “an un law ful emplo yme nt 2 pra cti ce foran emplo yer. . . to di scr imi nat e a gai nst an y ind ivi dua l w ithre spe ct to his co mpe nsa tio n, ter ms, con dit ion s, or pri vil ege s o f e mpl oym ent , b eca use ofsu ch ind ivi dua l’s ra ce, co lor , r eli gio n, sex , o r n ati ona l ori gin .” 42 U. S.C . § 20 00e -2( a)( 1). On th is app eal , w e c ons ide r o nlyMc Gul lam ’s Tit le VII 3 sex ual ly hos til e w orken vir onm ent cl aim . In herco mpl ain t, McG ull am add iti ona llyal leg ed tha t C eda r G rap hic s dis cri min ate d a gai nst he r b y t erm ina tin g h er employment and by providing her with “[u]nequal terms and conditions of [] employment.” But byor derda tedMa rch18 , 2 009 , t his Co urt dis mis sedhe r a ppe al as to all no n-h ost ile wo rk env iro nme nt cla ims “b eca use th ey lac k a n a rgu abl e b asi s i n l aw or fac t.” By ord er dat ed May21 , 2 009 , t his Co urt de nie d M cGu lla m’s mot ion fo r r eco nsi der ati on of the Ma rch18 , 2 009 or der . To the ex ten t t hat th e d ist ric t c our t c ons tru ed McG ull am’ s c omp lai nt as add iti ona llyas ser tin g c lai ms pur sua nt to the Ne w Y orkSt ate Hu man Ri ght s L aw, N.Y. Exec. Law § 290 et seq. , t he dis tri ct cou rt lac kedsu bje ct mat ter jur isd ict ion ov er tho se cla ims . NewYo rk’ s e lec tio n o f rem edi es sta tut e d epr ive s N ew Yor k c our ts of jur isd ict ion to hea r c lai ms fil ed wit h t he NYS DHRan d d ism iss ed foran y rea son ot herth an tho se lis tedin th e s tat ute . See N. Y. Exe c. Law§ 297 (9) . “[A ] s tat e l aw dep riv ingit s c our ts of jur isd ict ion ov er a s tat e l aw cla im als o o per ate s t o d ive st a f ede ral co urt ofju ris dic tio n t o d eci de the cl aim .” Moo die v. Fe d. Res erv e B ankofN. Y., 58 F. 3d 879 , 8 84 (2d Cir . 1 995 ). 7 1 196 4, as ame nde d, 42 U.S .C. § 200 0e et seq. (“Title VII”) 2 (the relevant text is in the margin ). This appeal 2 3 considers McGullam’s claim of a “[s]exually [h]ostile 4 [e]nvironment that was pervasive.” The disposition of her 5 other claims is set forth in the margin. 3 6 On Dec emb er 21, 20 07, Ce darGr aph ics mo vedfo r s umm ary 7 jud gme nt, du ly att ach inga “No tic e t o P ro Se Lit iga nt8 1 Opp osi ng Mot ion fo r S umm aryJu dgm ent .” Mc Gul lamfa ile d t o 2 fil e a ny opp osi tio n. On Au gus t 2 0, 200 8, the di str ict co urt 3 gra nte d s umm aryju dgm ent on th e T itl e V II hos til e w ork 4 env iro nme nt cla im anden ter ed fin al jud gme nt in fav or of 5 Ced ar Gra phi cs. T he dis tri ct cou rt det erm ine d t hat (i ) t he 6 hos til e w orken vir onm ent cl aimwa s t ime -ba rre d, and(i i) in 7 the al ter nat ive , M cGu lla m f ail ed to rai se a g enu ine is sue of 8 mat eri al fac t a s t o t he sev eri ty or per vas ive nes s o f t he 9 compla ine d-o f c ond uct . McG ull am v. Ced ar Gra phi cs, In c., 10 No. 04 -CV -28 91 (DR H)( AKT ), 200 8 W L 3 887 604 , a t * 5-* 7 11 (E. D.N .Y. Au g. 20, 20 08) . On Sep tember19 , 2 008 , M cGu lla m 12 tim elyfi leda not ice ofap pea l. 13 14 DIS CUS SION 15 “We review an award of summary judgment de novo, and 16 will uphold the judgment if the evidence, viewed in the 17 light most favorable to the party against whom it is 18 entered, demonstrates that there are no genuine issues of 19 material fact and that the judgment is warranted as a matter 20 of law.” Global Network Commc’ns, Inc. v. City of New York, 21 562 F.3d 145, 150 (2d Cir. 2009); see also Vt. Teddy Bear 22 Co. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004)9 1 (applying the same standard of review to the grant of an 2 unopposed motion for summary judgment); Fed. R. Civ. P. 3 56(c)(2). Fol low ingde no vo rev iew , w e a ffi rm the gr ant of 4 summar y j udgmen t, but do so on a gro unddi ffe ren t f rom 5 eit herofth e t wo alt ern ati ve gro und s r eli ed on by the 6 dis tri ct cou rt. S ee, e. g., Bo y S cou ts of Ame ric a v . W yma n, 7 335 F. 3d 80, 90 (2 d C ir. 20 03) (“ [W] e m ay aff irmth e 8 jud gme nt of the di str ict co urt on an y g rou nd app ear ingin 9 the re cor d.” ). 10 I 11 Relevant to this appeal, Title VII’s administrative 12 exhaustion provision requires that any complaint be filed 13 with the EEOC within 300 days of the alleged discriminatory 14 act. See 42 U. S.C . § 20 00e -5( e)( 1) (pr ovi din g t hat wh ere a 15 compla ina nt “ha s i nit ial ly ins tit ute d p roc eed ing s w itha 16 Sta te or loc al age ncywi th aut hor ityto gr ant orse ek 17 rel ief ,” the co mpl ain ant ha s 3 00 day s f romth e o ccu rre nce of 18 the “a lle gedun law ful emplo yme nt pra cti ce” to fi le a 19 compla int wi th the EE OC) . 20 “When, as in this case, a plaintiff’s allegations of 21 discrimination extend beyond the 300-day limitations period, 22 the nature of the claim determines what consideration will10 1 be given to the earlier conduct.” Petrosino v. Bell Atl., 2 385 F.3d 210, 220 (2d Cir. 2004). With respect to claims 3 based on “termination, failure to promote, denial of 4 transfer, or refusal to hire,” Morgan, 536 U.S. at 114, 5 section “2000e-5(e)(1) ‘precludes recovery for discrete acts 6 of discrimination or retaliation that occur outside the 7 statutory time period,’ even if other acts of discrimination 8 occurred within the statutory time period,” Patterson v. 9 County of Oneida, N.Y., 375 F.3d 206, 220 (2d Cir. 2004) 10 (quoting Morgan, 536 U.S. at 105). 11 But “[h]ostile work environment claims are different in 12 kind from discrete acts. Their very nature involves 13 repeated conduct. The ‘unlawful employment practice’ 14 therefore cannot be said to occur on any particular day. It 15 occurs over a series of days or perhaps years and, in direct 16 contrast to discrete acts, a single act of harassment may 17 not be actionable on its own.” Morgan, 536 U.S. at 115 18 (internal citation omitted). Accordingly, “consideration of 19 the entire scope of a hostile work environment claim, 20 including behavior alleged outside the statutory time 21 period, is permissible for the purposes of assessing 22 liability, so long as an act contributing to that hostile11 1 environment takes place within the statutory time period.” 2 Id. at 105; see also id. at 118 (“Given . . . that the 3 incidents constituting a hostile work environment are part 4 of one unlawful employment practice, the employer may be 5 liable for all acts that are part of this single claim. In 6 order for the charge to be timely, the employee need only 7 file a charge within . . . 300 days of any act that is part 8 of the hostile work environment.”). Morgan illustrated this 9 holding with two 401-day scenarios: 10 (1) Acts on days 1-400 create a hostile work 11 environment. The employee files the charge on day 12 401. Can the employee recover for that part of 13 the hostile work environment that occurred in the 14 first 100 days? (2) Acts contribute to a hostile 15 environment on days 1-100 and on day 401, but 16 there are no acts between days 101-400. Can the 17 act occurring on day 401 pull the other acts in 18 for the purposes of liability? In truth, all 19 other things being equal, there is little 20 difference between the two scenarios as a hostile 21 environment constitutes one “unlawful employment 22 practice” and it does not matter whether nothing 23 occurred within the intervening 301 days so long 24 as each act is part of the whole. Nor, if 25 sufficient activity occurred by day 100 to make 26 out a claim, does it matter that the employee 27 knows on that day that an actionable claim 28 happened; on day 401 all incidents are still part 29 of the same claim. On the other hand, if an act 30 on day 401 had no relation to the acts between 31 days 1-100, or for some other reason, such as 32 certain intervening action by the employer, was no 33 longer part of the same hostile environment claim, 34 then the employee cannot recover for the previous 35 acts, at least not by reference to the day 40112 1 act. 2 3 Id. at 118. Accordingly, if “any act falls within the 4 statutory time period,” we need “to determine whether the 5 acts about which an employee complains are part of the same 6 actionable hostile work environment practice.” Id. at 120. 7 II 8 We start by asking whether McGullam alleged any 9 discriminatory act within the limitations period. 10 McGullam filed her complaint with the NYSDHR--which 11 sent the complaint to the EEOC for dual filing purposes--on 12 July 3, 2001. The limitations period therefore started on 13 September 6, 2000 (300 days prior to July 3, 2001). Cedar 14 Graphics terminated McGullam’s employment on September 12, 15 2000. Accordingly, unless a discriminatory act contributing 16 to her hostile work environment claim fell within the seven17 day window--between the start of the limitations period on 18 September 6, 2000 and the termination of her employment on 19 September 12, 2000--her claim is time-barred. 20 The on ly con duc t c omp lai nedofaf terMc Gul lam ’s 21 Sep tember22 , 1 999 tr ans ferto th e e sti mat ingde par tme nt-

- 22 andth ere for e t he onl y a lle geddi scr imi nat oryac ts tha t 23 cou ld fal l w ith in the se ven -da y w ind ow- -ar e t he chi cki esTh is con str uct ion fi nds su ppo rt in (i) Mc Gul lam ’s 4 NYS DHRco mpl ain t, whi ch ass ert ed tha t t he “mo st rec ent or con tin uin g d isc rim ina tio n t ookpl ace [o n] 09/ 12/ 00” ; ( ii) McG ull am’ s o ppo sit ion to Ce darGr aph ics ’s mot ion fo r p art ial summar y j udgmen t, whi ch ass ert ed tha t h er cla im “en compas sed the en tir e e mpl oym ent pe rio d”; an d ( iii ) M cGu lla m’s No vember 21, 20 08 mot ion to pr oce ed in for ma pau per is in thi s C our t, whi ch ass ert ed tha t h er cla im was “o f a co nti nuo us and ong oin g n atu re fro m t he fir st dayofemplo yme nt unt il the las t a nd the en tir e t ime pe rio d i s t o b e c ons ide redon th at bas is. ” 13 1 commen ts andth e s lee p-o verco mme nt. A s a lle ged , t he 2 chi cki es commen ts are to o t riv ial to co ntr ibu te to a T itl e 3 VII ho sti le wor k e nvi ron men t c lai m. Th ey wer e n ot obs cen e 4 or lew d, or eve n s exu all y s ugg est ive . Eve n i f t he chi cki es 5 commen ts cou ld be dee medun ref ine d o r u nci vil , T itl e V II 6 simply“d oes no t s et for th a g ene ral ci vil ityco de forth e 7 Ame ric an wor kpl ace .” Burlington N. & Santa Fe Ry. Co. v. 8 White, 548 U.S. 53, 68 (2006) (internal quotation marks 9 omitted). We the ref ore fo cus ex clu siv elyon th e t imi ng of 10 the sl eep -ov er commen t. 11 McGullam nowhere dates that single incident. Then 12 again, the statute of limitations is an affirmative defense, 13 and the defendant has not tried to find out whether McGullam 14 can date the incident. McG ull am’ s s ubm iss ion s a rgu abl y 15 all ege th at the sl eep -ov er commen t w as mad e w ith in the 16 sev en- daywi ndo w. S ee Ter ry v. Ash cro ft, 33 6 F .3d12 8, 137 414 1 (2dCi r. 200 3) (“I n d ete rmi nin g w het herth ere ar e g enu ine 2 iss ues ofma ter ial fa ct, we ar e r equ ire d t o r eso lve al l 3 amb igu iti es anddr aw all pe rmi ssi ble fa ctu al inf ere nce s i n 4 fav or of the pa rtyag ain st who m s umm aryju dgm ent is so ugh t.” 5 (in ter nal qu ota tio n m ark s o mit ted )) . Inan y e ven t, the 6 dis tri ct cou rt ass ume d t hat th e s lee p-o verco mme nt occ urr ed 7 wit hin th e l imi tat ion s p eri od, an d C eda r G rap hic s d oes no t 8 arg ue to the co ntr aryon ap pea l. 9 III 10 Was th e s lee p-o verco mme nt suf fic ien tlyre lat ed to the 11 pro duc tio n d epa rtm ent co ndu ct to be par t o f t he sam e a lle ged 12 hos til e w orken vir onm ent pr act ice ? 13 Under Morgan, a sexually offensive incident within the 14 limitations period permits consideration of an incident 15 preceding the limitations period only if the incidents are 16 sufficiently related. “[I]t does not matter whether nothing 17 occurred within the intervening [] days so long as each act 18 is part of the whole.” Morgan, 536 U.S. at 118. 19 The district court’s relatedness test was to consider 20 whether the within-limitations period incident satisfied the 21 severe or pervasive standard of a hostile work environment 22 claim. See Har ris v. Fo rkl ift Sy s., In c., 51 0 U .S. 17 , 2 115 1 (19 93) (d ete rmi nin g t hat to es tab lis h a Ti tle VI I h ost ile 2 wor k e nvi ron men t c lai m, a p lai nti ff mus t s howth at “th e 3 wor kpl ace is pe rme ate d w ithdi scr imi nat oryin tim ida tio n, 4 rid icu le, an d i nsu lt, th at is suf fic ien tlyse ver e o r 5 per vas ive to al terth e c ond iti ons ofth e v ict im’ s e mpl oym ent 6 andcr eat e a n a bus ive wo rki ng env iro nme nt” (i nte rna l 7 quo tat ion ma rks an d c ita tio n o mit ted )). Cedar Graphics 8 urges us to use the same test. However, this approach finds 9 no support in Morgan, which emphasized that the “repeated 10 conduct” giving rise to a hostile work environment claim 11 “occurs over a series of days or perhaps years” and that a 12 component act need not be “actionable on its own.” Morgan, 13 536 U.S. at 115. We instead affirm using a different 14 analysis. 15 Morgan requires courts to make an individualized 16 assessment of whether incidents and episodes are related. 17 Morgan’s discussion of the 401-day scenarios does not limit 18 the relevant criteria, or set out factors or prongs. See 19 Morgan, 536 U.S. at 118 (“[I]f an act on day 401 had no 20 relation to the acts between days 1-100, or for some other 21 reason, such as certain intervening action by the employer, 22 was no longer part of the same hostile environment claim,16 1 then the employee cannot recover for the previous acts, at 2 least not by reference to the day 401 act.”). 3 This flexibility is useful in a context as fact4 specific and sensitive as employment discrimination and as 5 amorphous as hostile work environment. Morgan determined 6 that “[a]lthough many of the acts upon which [the 7 plaintiff’s] claim depends occurred outside the 300 day 8 filing period, we cannot say they are not part of the same 9 actionable hostile environment claim” based on “evidence 10 from a number of . . . employees that managers made racial 11 jokes, performed racially derogatory acts, made negative 12 comments regarding the capacity of blacks to be supervisors, 13 and used various racial epithets.” Id. at 120-21; see 14 also Rowe v. Hussmann Corp., 381 F.3d 775, 781 (8th Cir. 15 2004) (where “it was the same harasser . . . committing the 16 same harassing acts . . . ,” concluding “as a matter of law 17 that the acts before and after the limitations period were 18 so similar in nature, frequency, and severity that they must 19 be considered to be part and parcel of the hostile work 20 environment”); Lucas v. Chi. Transit Auth., 367 F.3d 714, 21 727 (7th Cir. 2004) (finding that an “altercation in 2001” 22 arising out of a “chance meeting” between an employee and a17 1 former supervisor “simply cannot be considered part of” any 2 “1997 hostile work environment” where there were “no 3 incidents during the intervening years”). 4 In this case, the sleep-over comment is insufficiently 5 related to the production department conduct chiefly for two 6 reasons. First, Cedar Graphics transferred McGullam (at her 7 request) from the production department, where she 8 experienced harassment, to the estimating department, which 9 was a different environment in material respects--and in a 10 different sector of the building. See Morgan, 536 U.S. at 11 118 (recognizing the importance of an “intervening action by 12 the employer”). McGullam testified at her deposition that 13 she had no problem with anyone in the estimating department. 14 Second, the sleep-over comment “had no relation to the” 15 production department harassment. Id. In the production 16 department McGullam encountered lewd and teasing comments 17 that were about McGullam, and that were addressed to her or 18 were made in her presence. The sleep-over comment-- 19 offensive though it may have been--was not lewd, it was not 20 about McGullam, and it was not addressed to her or made for 21 her to hear it. And the salesman she overheard was a member 22 of neither the production department nor the estimatingUn lik e t he dis tri ct cou rt, we th ere for e d o n ot rea ch 5 the me rit s o f a ho sti le wor k e nvi ron men t c lai m b ase d o n t he pro duc tio n d epa rtm ent co ndu ct anddo no t dwel l o n t he sev eri ty (orla ck the reo f) of tha t p re- lim ita tio ns con duc t. Jud ge Cal abr esi do es, ho wev er, fo r t he pur pos e o f rec omm end ingth at the Mo rga n t est be mo dif iedorre ima gin ed. U nde r J udg e C ala bre si’ s r eas oni ng, wi thi nlim ita tio ns con duc t t hat is ot her wis e i nsu ffi cie ntl y r ela ted to pre -li mit ati ons co ndu ct nev ert hel ess ma y r evi ve pre lim ita tio ns con duc t i f t hat co ndu ct is esp eci all y s eve re. Thu s, Jud ge Cal abr esi ’s con cur rin g o pin ion st ate s: “Th e sev eri ty of th[ e] pre -li mit ati ons pe rio d c ond uct pu she s i n the di rec tio n o f f ind inga sin gle ho sti le wor k e nvi ron men t .

. . .” Thi s r eas oni ng tur ns Mor gan on it s h ead . Mor gan dir ect s c our ts to eva lua te the re lat edn ess ofwi thi nlim ita tio ns con duc t a nd pre -li mit ati ons co ndu ct. C ons ist ent wit h a fl exi ble ap pro ach , c our ts mayev alu ate re lat edn ess by compar ingth e s eve rit y o f l att er- dayan d e arl ierin cid ent s. Obv iou sly , t he mor e s imi larth e i nci den ts are in se ver ity , 18 1 department. Moreover, for the sleep-over comment to fall 2 within the limitations period, it must have occurred nearly 3 one year after McGullam’s transfer. Although that incident4 free interval does not preclude relatedness, it renders less 5 plausible the notion that the sleep-over comment is of a 6 piece with the production department conduct. Given these 7 discontinuities, we have no trouble finding insufficient 8 relatedness. 9 Accordingly, the sleep-over comment did not contribute 10 to any hostile work environment claim based on the 11 production department conduct and such a claim is therefore 12 time-barred. 5the mo re lik elyit is th at the in cid ent s a re rel ate d u nde r

Mor gan . Jud ge Cal abr esi ’s app roa ch inv ert s t he tes t s uch tha t l att er- dayco ndu ct tha t i s m ildso meh ow bec ome s “re lat ed” fo r t he ver y r eas on tha t i t d iff ers ma rke dlyfr om ear lie r c ond uct th at is sev ere . 19 1 IV 2 McGullam’s claim nevertheless might survive summary 3 judgment if there were a triable issue as to whether the 4 sole non-trivial incident occurring within the limitations 5 period was itself of sufficient severity to support a 6 hostile work environment claim (albeit a truncated claim 7 premised on that single incident). See, e.g., Howley v. 8 Town of Stratford, 217 F.3d 141, 148, 153-56 (2d Cir. 2000). 9 To rep eat , a pl ain tif f s eek ingto es tab lis h a Ti tle VI I 10 hos til e w orken vir onm ent cl aimmu st sho w t hat “t he wor kpl ace 11 is per mea tedwi th dis cri min ato ry int imi dat ion , r idi cul e, and 12 ins ult , t hat is su ffi cie ntl y s eve re or per vas ive to al ter 13 the co ndi tio ns of the vi cti m’s emplo yme nt andcr eat e a n 14 abu siv e w ork ingen vir onm ent .” Ha rri s, 510 U. S. at 21 15 (in ter nal qu ota tio n m ark s a nd cit ati on omi tte d). T his 16 sev ere orpe rva siv e s tan dar d “ has ob jec tiv e a nd sub jec tiv e 17 ele men ts: th e m isc ond uct sh own mu st be ‘se ver e o r p erv asi ve 18 eno ughto cr eat e a n o bje cti vel y h ost ile orab usi ve wor k 19 env iro nme nt, ’ a nd the vi cti m must al so sub jec tiv elype rce iveA Tit le VII se xua llyho sti le wor k e nvi ron men t c lai m 6 fur the r r equ ire s a pl ain tif f t o e sta bli sh tha t t he con duc t at iss ue occ urr ed “be cau se of the pl ain tif f’s se x,” Pa tan e v. Cla rk, 50 8 F .3d10 6, 113 (2 d C ir. 20 07) (p er cur iam ) (in ter nal qu ota tio n m ark s o mit ted ), andth at “a spe cif ic bas is exi sts fo r i mpu tin g t he con duc t t hat cr eat ed the hos til e e nvi ron men t t o t he emp loy er, ” P err y v . E tha n A lle n, Inc ., 115 F. 3d 143 , 1 49 (2dCi r. 199 7). We re ad sec tio n I I o f J udg e C ala bre si’ s c onc urr ing 7 opi nio n t o s ugg est no thi ng mor e t han th at tim e-b arr ed con duc t m ay be con sid ere d a s b ack gro undev ide nce in ce rta in cir cum sta nce s. As sh own byth e p are nth eti cal s t o t he cit ati ons in th e t ext , w e h ave no qu arr el wit h t hat sug ges tio n. 20 1 tha t e nvi ron men t t o b e a bus ive .” A lfa no v. Cos tel lo, 29 4 6 2 F.3 d 3 65, 37 4 ( 2d Cir . 2 002 ) ( quo tin g H arr is, 51 0 U .S. at 3 21) . Cou rts re vie w t he tot ali ty of the ci rcu mst anc es, 4 inc lud ing“t he fre que ncyofth e d isc rim ina tor y c ond uct ; i ts 5 sev eri ty; wh eth er it is phy sic all y t hre ate nin g o r 6 hum ili ati ng, ora mer e o ffe nsi ve utt era nce ; a nd whe the r i t 7 unr eas ona blyin ter fer es wit h a n e mpl oye e’s wo rk 8 per for man ce. ” Har ris , 5 10 U.S . a t 2 3; see al so Mor gan , 5 36 9 U.S . a t 1 13 (ex pla ini ng tha t a n e mpl oye e i s n ot bar red“f rom 10 usi ng . . . pri or act s a s b ack gro undev ide nce in su ppo rt of 11 a t ime ly cla im” ); Fit zge ral d v . H end ers on, 25 1 F .3d34 5, 365 12 (2dCi r. 200 1) (“Ast atu te of lim ita tio ns doe s n ot ope rat e 13 to barth e i ntr odu cti on of evi den ce tha t p red ate s t he 14 commen cem ent ofth e l imi tat ion s p eri od but th at is rel eva nt 15 to eve nts du rin g t he per iod .”) . 721 1 McGullam’s subjective perception notwithstanding, the 2 sleep-over comment objectively falls short of the requisite 3 levels of severity or pervasiveness. Cf. e.g., Alfano, 294 4 F.3d 365 (overturning a jury verdict in favor of the 5 plaintiff because the evidence at trial--demonstrating 6 conduct far more egregious than the sleep-over comment in 7 this case--was insufficient as a matter of law to establish 8 a sexually hostile work environment). 9 Accordingly, the sleep-over comment alone does not 10 present a triable issue regarding McGullam’s hostile work 11 environment claim. 12 13 CONCLU SION 14 We have considered all of McGullam’s contentions on 15 this appeal and have found them to be without merit. 16 Accordingly, the judgment of the district court is hereby 17 AFFIRMED .CALABRE SI, Circuit Judge , concurring: 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 I join the majority opinion becau se I agree with the result it reaches in this case and also with its reasoning, 1 as far as it goes. Specifically, I c oncur with the majority opinion’s two principal holdings: (1) that the only discriminatory conduct that McGullam alleges occurred within the limitations period ( i.e. , the comments she overheard by a salesman who referred to women as “chickies,” and who said of a female friend that “she wasn’t worth the trip” “[i]f it wasn’t going to be a sleep-over” ) is insufficiently related to prior alleged discriminatory conduct to be considered part of the same “unl awful employment practice” under 42 U.S.C. § 2000e5(e)(1) and National Railroad Passenger Corp. v. Morgan , 536 U.S. 101 (2002); and (2) that the within-limitations-period comments were neither sufficiently severe nor pervasive enough to establish liabilityunder Title VII. I write separately, however, to explain my views on the relevance, for the purposes of proving a hostile work environment claim, of discriminatory incidents from outside the limitations period. First, in determining whether incidents and episodes are sufficiently related to constitute a single discriminatory employment practice under Morgan , I would consider multiple factors—including the severity of earlier incidents—as part of a totality of the circumstances analysis. The majority opinion implicitly identifies certain factors with which I agree, but my approach requires that I addres s additional issues that the majority does not consider. Second, I believe that even where prior incidents are not part of the same discriminatory employment practice, and so are excluded by limitations requirements, they nevertheless may providerelevant background evidence to support a claim based on incidents that are within the limitations period. I discuss each issue in turn.

1 I do not join footnote five, which I believe misunderstands the point I am making.

11 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 I. A. In Morgan , the Supreme Court explained that hostile work environment claims by “[t]heir very nature involve[] repeated conduct,” where liability often is based on “the cumulative effect of individual acts” that are not independently actionable. 536 U.S. at 115. In contrast then to discrete acts of discrimination, a hostile work environment is an “unlawful employment practice” that takes place over time , rather than “on any particular day.” Id. An “employer may be liable for all acts that are part of this single claim,” provided that at least one act that is part of the hostile work environment took place within the applicable limitations period. Id. at 118. “A court’s task isto determine whether the acts about which an employee complains are part of the same actionable hostile work environment practice, and if so, whether any act falls within the statutory time period.” Id. at 120. What constitutes “the same actionable hostile work environment practice” is, however, hardly self-defining. And the MorganCourt’s guidance on thisquestion is limited. See McGinest v. GTE Serv. Corp. , 360 F.3d 1103, 1114 n.6 (9th Cir. 2004) (“Morganitself does not offer precise guidance on how to evaluate whether an act that falls outside the statutory time period can nonetheless be considered for liability purposes.”). In providing illustrations to explain its holding—which the ma jority has quoted in full, s ee Maj. Op. at 11— Morgan suggested that later incidents will be considered distinct, if they have “no relation” to the earlier acts from outside the period, or if “for some other reason, such as certain intervening action by the employer,” the later acts are no longer part of the same hostile environment claim. 536 U.S. at 118. In addition, Morgan appeared to endorse the reasoningof the Ninth Circuit Court of Appeals that the pre- and post-limitations incidents were, in that case, partof the same violation

2because they “‘involve[d] the same type of em ployment actions, occurred relatively frequently, and were perpetrated by the same managers.’” Id. at 120 (quoting Morgan v. Nat’l R.R. Passenger Corp. , 232 F.3d 1008, 1017 (9th Cir. 2000)); see also Vickers v. Powell , 493 F.3d 186, 199 (D.C. Cir. 2007) (indicating that the Supreme Court in Morgangave some direction for determining whether employee complaints are part of the same actionable hostile work environment practice “by approving the lower court’s method”). 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 From these tea leaves, circuit courts subsequently have attempted to identify—sometimes explicitly, sometimes implicitly—vari ous factors that should guide the Morgan “relatedness” inquiry. 2 For its part, the majority opinion seeks to avoid setting forth general criteria in the interest of preserving “flexibility” for “a context as fact-specific and sensitive as employment discrimination and as amorphous as hostile work environment.” Maj. Op. at 16. Even so, by specifying reasons as to why the “sleep-over comment” in this case is insufficiently related to prior conduct that occurred while McGullam worked in the production department at Cedar Graphics, the majority opinion does identify certaindistinctions as materi al. Specifically, in distinguishing between the pre- and post-limitations period inci dents, the majority opinion highlights: (1) that they wereseparated by an intervening action by the employer—McGullam’s voluntary transfer—and so took place while McGullam was working for different departments in

2 See, e.g. , Stewart v. Miss. Transp. Comm’n , 586 F.3d 321, 329 (5th Cir. 2009) (finding pre- and post-limitations conduct sufficiently related to constitute a single “practice” because “[a]s in Morgan , the pre- and post-limitations period incident s involved the same type of harassment and were perpetrated by the same manager,” but nevertheless concluding that the two periods of harassment were severed by the employer’s intervening remedial actions); Duncan v. Manager, Dep’t. of Safety, City & County of Denver, 397 F.3d 1300, 1309 (10th Cir. 2005) (“To determine whether these acts are part of the same hostile work environment, Morganadvises looking at the type of these acts, the frequency of the acts, and the perpetrator of the acts.”); Rowe v. Hussmann Corp ., 381 F.3d 775, 781 (8th Cir. 2004) (“[W]e concludeas a matter of law th at the acts before and after the limitations period were so similar in nature, frequency, and severity that they must be considered to be part and parcel of the hos tile work environment that constituted the unlawful employment practice that gaverise to this action.”).

31 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 different parts of the building; (2) that they wereof a different nature, in that many of the prelimitations period incidents involved lewd comments that were about McGullam personally and were addressed to her or at least intended for her to hear, whereas the post-limitations comments were not (in the view of the ma jority opinion) lewd and were notdirected toward McGullam; and (3) that they were separated by a significant amount of time. I agree that all of these reasons given by the majority—the commonality of the environment in which the incidents took place (and whether a change in environment is due to intervening action by the employer), the nature of the incidents, and the temporal discontinuity between the incidents—are significantly relevant to assessing whether incidents are part of the same hostile environment claim. I also find helpful some factors that other circuits have attempted to glean from Morgan

. See supra note 1. It is, however, important to appreciate that these considerations are not exhaustive, and that none of them should be considered independently in deciding whether, in any given case, the connection necessary to establish a single hostile work environment exists. Temporal discontinuity, for instance, clearly does not by itself preclude a finding of relatedness under Morgan , 536 U.S. at 118, a point that the majority properly recognizes. See Maj. Op. at 19. Similarly, McGullam’s transfer to a different department ina different sector of the building is not alone fatal toan argument that the conduct she experienced was part of a single hostile work environment. If, for example,a plaintiff provided evidence tending to show that an entire company, including multiple departments, was permeated with gender-based discriminatory intimidation, ridicule, and insult , and that upper-level management knew of and tolerated this condition, that plaintiff would quite likely be able to establish that the harassment she endured while working in two different departments for that company was part of the same

4unlawful employment practice. See Isaacs v. Hill’s Pet Nutrition, Inc. , 485 F.3d 383, 386 (7th Cir. 2007) (concluding that the pl aintiff had alleged a single ho stile work environment claim notwithstanding her change in job assignment—which resulted in her working under new leaders and in a different part of a packaging plant—and that the change in the identity of her harassers was not significant because her Title VII claim was against management for failure to respond to her repeated complaints about her work environment, not against her co-workers). 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 3 I do not read the majority opinion as being to the contrary. And the fact that the majority opinion focuses on certain significantly salient differences, between the timely claims and the earlier incidents, to resolve this case need not beread as expressing a vieweither on the scope of the universe of possibly relevant factors that go into determining relatedness or on the weight any particular factor should be given. In thatregard, the majority opinion’s approach is much like that of the Supreme Court in Morgan , which, after noting some important similarities between the pre- and post-limitati ons period incidents, concluded simply that it could not say that the pre-limitations incidents were “not part of the same actionable hostile environment claim.” 536 U.S. at 121. It seems to me that what courts are doing without necessarily saying so—and indeed what they should be doing—is considering whether, ba sed on the totality of the circumstances, different incidents are part of the same underlying hostile work environment, both from the viewpoint of the plaintiff and from that of a reasonable person in her position. This is, after all,

3When the intervening action by the employer was undertaken in an attempt to remedythe negative work environment, it might, of course, have greater independent legal significance. See Stewart, 586 F.3d at 329 (finding that two periods of alleged harassment were separated by intervening action by the employer in the form of prompt remedial action where the employer reprimanded the harassing supervisor and reassigned the plaintiff away from his supervision). Cedar Graphics does not contend that there was such a remedi al purpose underlying McGullam’s transfer. The transfer was apparently initi ated by McGullam and presented by her to the company as a positive career opportunity.

51 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 precisely what courts do in deciding the connectedquestion of whether a work environment is, or is not, discriminatorily hostile under Title VII. See Morgan , 536 U.S. at 116 (“In determining whether an actionable hostile work environment claim exists, we look to all the circumstances, including the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance. ” (internal quotation marks omitted)); Harris v. Forklift Sys., Inc. , 510 U.S. 17, 23 (1993) (“[W]hether an environment is ‘hostile’ or ‘abusive’ can be determined only by looking at all the circumstances. These may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.”); Gorzynski v. Jetblue Airways Corp. , 596 F.3d 93, 102 (2d Cir. 2010) (indicating that to establish a hostile work environment claim, a plaintiff must show both that she subjectively perceived the environment as abusive and that the environment was objectively abusive, and explaining that a court must analyze these questions by “look[ing] to the record as a whole and assess[ing] the totality of the circumstances”). These factors routinely are used to determine whether the combined effect of various discriminatory incidents is sufficiently severe or pervasive to cause an employee to believe reasonably that her work conditions have beennegatively altered—that is, whether a hostile work environment existed. See Aulicino v. N.Y. City Dep’t of Homeless Servs. , 580 F.3d 73, 82 & n.8 (2d Cir. 2009). But the same factors not only determine whether a person reasonably believes that individual incidents are severe or pervasive enough to amount to discrimination; they also affect whether the incidents are properly viewed as an interrelated part of a course of discriminatory conduct, or are just unpleasant but unconnected events. For instance, frequent

61 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 discriminatory incidents are more likely, a) toconstitute a single employment practice—because a reasonable person will generallyconsider incidents that are cl ose in time to be connected—and b) to amount to discrimination that is sufficiently pervasive to state a claim under Title VII. Unsurprisingly then, “frequency” has been identified as a significant factor both for determining whether a work environment is unlawfully hostile, see Harris , 510 U.S. at 23, and for deciding whether two periods of incidents are part of the same employment practice, see e.g. , Duncan , 397 F.3d at 1309; Rowe , 381 F.3d at 781. For the same reasons, I believe that the severityof alleged conduct affects whether that conduct should be considered “related” under Morgan . All other things being equal, incidents that occurred later in time are more likely to be part of the same hostile environment as prelimitations period incidents when those earlier incidents were more severe . In this respect, consider both the subjective and obj ective relevance of severity. Asto the plaintiff herself, the severity of the earlier statements seems clearlyrelevant to the question of linkage between incidents. After all, how one reacts subjectively to a later statement—i.e. , whether one perceives the statement to constitute part of the sameemployment practice as prior statements and incidents—certainly depends on the nature, including the severity, of the earlier conduct. Moreover, an objective observer inthe plaintiff’s position would, I think, consider the relative severity of earlier incidents relevant to her asse ssment of whether later incidents were related. Where, for example, an individual previously experienced severe harassment, whether in the form of humiliating or obscene comments or even physical threats, a reasonable person is more likely to deem later comments and actions, even if milder, to be part of a pattern than if the earlier episodes were comparatively benign. This is especially likely when the same person or group of people is the source of both the earlier and later incidents. But even where the source is

7not common, earlier occurrences of severe hostility in the workplace may reasonablycolor one’s interpretation of later events and hence whether those events are related. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 B. Adopting this approach, which bases relatedne ss on the totality of the circumstances including the severity of alleged conduct, requires me to discuss an issue that the majority does not reach: the pervasiveness and severity of the pre-limitati ons-period conduct that McGullam asserted she endured while working in the production department. In my judgment, the conduct that McGullam alleged during this approximatelythree-year period woul d be sufficient, under our cases, to allow a reasonable jury to conclude that McGullam’s workplace was “permeated with discriminatory intimidation, ridicule, and insult,” causing her employment to be altered for the worse because of her gender. E.g. , Gorzynski , 596 F.3d at 102; Terry v. Ashcroft, 336 F.3d 128, 148 (2d Cir. 2003). 4 The majority sets forth most of the comments and actions that were personally directed at McGullam, and I need not repeat them here. See Maj. Op at 4-5. In addition, McGullam claims that she witnessed and overheard comments and displays while in the production department that were sexually offensive and demeaning to women generally, including: a) a comment by a male manager to another male manager that an (unidentified) woman was “well endowed” and had “double D’s”; b) a conversation between McGullam and two male co-workers about a client account McGullam had inherited, where one of the co -workers referred to the contact for that client as “generally a nice lady, except when she’s on the rag”; c) comments by the male plant manager and other male employees about a female employee at a sister

4I do not address the question of whether the alleged harassing c onduct that formed the basis of a hostile workplace can be imputed to Cedar Graphics, though on this issue it is notable both that McGullam claims to have made numerous complaints to supervisors about the work environment and that such complaints were generally “fruitless,” and also that McGullam implicates managers in the production department in some of the discriminatory conduct. See Distasio v. Perkin Elmer Corp. , 157 F.3d 55, 63 (2d Cir. 1998) (explaining the ways that liability for a hostile work environment can beimputed to an employer).

8company, with several employees speculating that the female employee was “probably ‘a dog’” and the manager res ponding to the contrary that she was “probably beautiful” because “[a]fter all, the bitchier they are, the prettier they are”; d) a male employee “openly” and “c onstantly” “scratching and adjusting his genitals”; e) a male employee using the phrase “titty bar”; and f) repeated sexually explicit jokes by a particular maleemployee who every year at Christmas time performed a modified (and sexualized) version of the song “Oh Come All Ye Faithful” while “strok[ing] . . . a large,imaginary penis,” and who on another occasion told a joke about having sexual relations with a 7-year-old girlfriend. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 These incidents, and those described by the majority, are not exhaustive of McGullam’s allegations. In concluding that McGullam failed to establish a claim for hostile work environment, the district court referred toplaintiff’s allegations as amounting to “off-hand remarks” and “jokes” that, though they “may have madePlaintiff uncomfortable,” were“not personally insulting, nor . . . obviously intended to intimidate, ridicule, or demean Plaintiff on account of her gender.” See McGullam v. Cedar Graphics, Inc ., No. 04-CV-2891, 2008 WL 3887604, at *7 (E.D.N.Y. Aug. 20, 2008). 5 I do not believe the record, viewed inits totality, supportsthis conclusion. McGullam points to several incidents that were personally insulting and intended to intimidate, ridicule or demean her, including the comment—made in front of the entire production department— that her “problem” was that she did not “get fucked enough,” the comment by a male co-worker that she had a “big fat ass,” aswell as the “joke” by a male co-worker who said that he wanted “to pump a bullet into [McGullam’s] head, right behind [her] ear and blow [her] brains out.” Moreover, these incidents must be considered alongside the other comments, only some of which I mentioned above, that were not directed to or about McGullam, but also contributed to a work environment that was hostile to women. See Patane v. Clark, 508 F.3d 106, 114 (2d

5The district court did not que stion that McGullam subjectively experienced her workplace as hostile, and on appeal Cedar Graphics has not challenged this.

91 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 Cir. 2007) (“[A] plaintiff need only allege that she suffered a hostile work environment because of her gender, not that all of the offensive conduct was specificallyaimed at her.”). The district court minimized these statements, claiming that there was “nothing in the record to indicate that the alleged conduct was made on the basis of gender,” and that “[a]t be st, the evidence here demonstrates that the work environment was equally unprofessional for both men and women.” McGullam , 2008 WL 3887604, at *7. This was error. Certainly, plaintiff, who proceeded pro se in this litigation, made multiple allegations about workplace vulgarity and poor manners that are not actionable under Title VII. See Oracle v. Sundowner Offshore Servs., Inc. , 523 U.S. 75, 80 (1998). But many of the comments that McGullam asserts she overheard—including references to one woman as a “dog” and as “bitch[y],” to another woman as being “on the rag,” and more generically to a “titty bar”—have obvious gender connotations that a person in plaintiff’s position reasonably could understand to be particularly demeaning to women as a group. That this sexually derogatory language was not always directed specifically at McGullam or even necessarily at individual women, and rather appears to be the product of a locker-room of fice culture that both men and women observed (and in which some women even participated) does not insulate Cedar Graphics from a Title VII hostile work environment claim. See Petrosino v. Bell Atl. , 385 F.3d 210, 221-23 (2d Cir. 2004) (explaining that “[t]he mere f act that men and women are both exposed to the same offensive circumstances on the job site . . . does not mean that, as a matter of law, their work conditions are necessarily equally harsh” where a jury could reasonably find that certain offensive comments and materials were particularly offensive to women); see also Reeves v. C.H. Robinson Worldwide, Inc. , 594 F.3d 798, 810 (11th Cir. 2010) (en banc) (“[A] member of a protected group cannot be forced to endure pervasive, derogatory conduct and references that are gender101 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 specific in the workplace, just because the workplace may be otherwise rife with generally indiscriminate vulgar conduct. Title VII does not offer boorish employers a free pass to discriminate against their employees specificallyon account of gender just because they have tolerated pervasive but indiscriminate profanity as well.”). C. The severity of this pre-limitations period conduct pushes in the direction of finding a single hostile work environment at Cedar Graphicsthat persisted through McGullam’s transfer to the estimating department and extended into the actionable limitationsperiod. A person in McGullam’s position, who had previously worked in an office where degrading discussion of women was pervasive and tolerated might understandably construe a salesman’s subsequent references to women as “chickies” and his discussi on of a girlfriend as not being “worth the trip” if she did not sleep with him as a continuation of the same hostile environment. Nevertheless, I am ultimately persuaded that, based on the totality of circumstances, these later comments were not part of the same employment practice as the earlier incidents that took place in the production department. The majority properly emphasizes the significance of McGullam’s voluntary transfer out of the production department in this case, because that transfer physically separated her from the atmosphere that had been hostile to her and limited (albeit without completely eliminating) her interaction with the employees from that department. McGullam indicated, in both her deposition testimony and in her journal, that the environment in the estimating department was “better,” and, as the majority notes, she pointed to no problems with anyone in the estimating department. For these reasons, and for others stated in the majority opinion, I do not believe that the salesman’s isolated comments that McGullam overheard approximately a year after her transfer can be consideredpart of the same employment

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4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 practice as the harassment from McGullam’s time in the production department. As a result, I agree that the earlier harassment was outside the statute of limitations period and, hence, nonactionable.

II. Even where incidents from outside of the limitations period are not sufficiently related to within-limitations incident s to be actionable under Morgan , they may still be germane to a plaintiff’s Title VII claim in a different way. In Morgan , the Court held that, in contrast to hostile work environment claims, discrete acts of alleged discrimination, such as termination, failure to promote, or refusal to hire, are not actionable if time barred. 536 U.S. at 113. But, the Court added, this does not “bar an employee from using the prior acts as background evidence in support of a timely claim.” Id. ; see also Petrosino , 385 F.3d at 220 (recognizing that plaintiff’s claims based on earlier promoti on denials were time barred, but determining that “evidence of earlier promotion denials may constitute relevant background evidence in support of a timely claim” and would be so considered (internal quotation marks omitted)). Similarly, alleged incidents that may not be considered for purposesof establishing liability for a hostile work environment, because they occurred outside the limitations period and were not sufficiently related to incidents within that period, nevertheless may be admissible and probative as background evidence to support a claim based on alleged conduct that falls within the limitations period. See McGinest, 360 F.3d at 1114 n.6 (endorsing this reading of Morgan ). It is, therefore, a mistake to assume that incidents that are unrelated under the Morgan standard are irrelevant. But see id. at 1128 (O’Scannlain, J., concurring in part and dissenting in part). The meaning of words and actions in the workplace frequently cannot be judged in a vacuum; their meaning may well depend on context. See Oncale , 523 U.S. at 81-82 (“The real

121 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 social im pact of workplace behavior often depends on a constellation of surrounding circumstances, expectations, and relationships which are not fullycaptured by a simple recitation of the words used or the physical acts performed.”). Prior incidents, even if they are not part of the same employment practice, can provide such context. Thus, whether an objective observer would consider comments to have gender-dis criminatory (or racially discriminatory) connotations, or to be intended to further a pattern of gender or racial discrimination, will not always be obvious, and may depend on circumstantial evidence. Cf. Holcomb v. Iona Coll. , 521 F.3d 130, 141 (2d Cir. 2008) (recognizing that direct evidence of discriminatory intent in employment discrimination cases is generally hard tocome by, and that plaintiffs must be able to rely on circumstantial evidence). Evidence that similar comments have previously been used by the same individual (or perhaps by others in the company) to harass on the basis of race or gender might well be relevant to how the later comments reasonably could be interpreted. And, significantly, that will be so even if the commentsare not part of the same unlawful employment practice under Morganbecause, for instance, the comments are separated by an important intervening action by the employer and by a substantial amount of time. In this respect, the severityof prior time-barred incidents may also be relevant as background evidence. Subjectively, a female pl aintiff who has previously experienced an extremely hostile work environment is more likely to perceive subsequent discriminatory incidents—that, let us assume, take place in a different department within the company, under different managers, and after some gap in time—to create an environment that is hostile to women. Similarly, the severity of such prior inci dents is also relevant to an objective observer’s assessment of the latter environment. Objectivejudgment may more readily discount the earlier

1314 1 2 3 4 5 6 7 8 severe hostility, but at least in some circumstances, such severe hostility may still be determinative. Ultimately, I do not think that in the case before us the pre-limitations conduct affects the result. Even if the production department conduct is considered as background evidence, and is deemed as severe as I take it to be, the “sleep-over comment” (whether or not it is combined with the “chickies” comments) is not adequate to survive summary judgment. In other cases, however, evidence from outside the limitations period pertaining to conduct that is no longer actionable might well make a difference in establishing the validity of a plaintiff’s timely claims.